1 This Court has jurisdiction over Buskirk’s ADA claims pursuant to 29 U.S.C.§ 1331. This Court has jurisdiction over Buskirk’s other claims pursuant to29 U.S.C. § 1367.

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLARD T. BUSKIRK, ::

Plaintiff, : CIVIL ACTION :

v. : No. 99-216:

APOLLO METALS, ::

Defendant. :

MEMORANDUM

JOYNER, J. SEPTEMBER , 2000

This is an employment discrimination case brought byPlaintiff Willard T. Buskirk (“Buskirk”) against his employer,Apollo Metals (“Apollo”). In his Complaint, Buskirk alleges thatApollo unlawfully terminated his employment in violation of theAmericans with Disabilities Act, 42 U.S.C. §§ 12101-13 (1995)(“the ADA”), and the Pennsylvania Human Relations Act, 43 P.S. §§951-63 (1991) (“the PHRA”). In addition to his ADA and PHRAclaims, Buskirk also alleges a common law tortious interferencewith contractual relations claim arising out of his settlementnegotiations with Apollo’s workers’ compensation carrier, the PMAInsurance Group (“PMA”). Apollo now seeks summary judgment withrespect to all of Buskirk’s claims.1

BACKGROUND

Taken in the light most favorable to the plaintiff, thefacts are as follows. Buskirk began working at Apollo in March1981. Over the next several years, he held a variety ofpositions within the company. On February 8, 1996, Buskirkinjured his back when he slipped on ice in Apollo’s parking lot. At that time, Buskirk was working as a box maker, a position hehad held for approximately one year prior to his injury.

Shortly after his accident, Buskirk underwent a medicalexamination that confirmed that he had strained his back. Although Buskirk was permitted to return to work at Apollo, thetreating physician placed restrictions on the amount of weightBuskirk could lift and the duration of time he could performcertain tasks. Buskirk returned to work on February 12, 1996;however, because of his new medical restrictions, he switchedfrom working as a box maker to performing less strenuous jobssuch as buff building, sample cutting, and quality inspection.

2 At the outset, we note that Buskirk has been evaluated by numerous peopleover the last several years. For the sake of clarity, we briefly identifythese persons below.

(1) Dr. Capobianco, M.D.: Doctor who first treated Buskirk after hisinjury on February 8 and 13, 1996.

(2) Dr. Vincent Stravino, M.D.: Doctor who treated Buskirk betweenFebruary and March 1996.

(3) Dr. Behrman, D.C.: First chiropractor who treated Buskirk inMarch and April 1996.

(4) Dr. Mark Kuhns, D.C.: Second chiropractor, with whom Buskirkreplaced Dr. Behrman, who first treated Buskirk in April 1996.

(5) Dr. Barry Pollack, M.D.: Neurosurgeon, with whom Buskirk replacedDr. Stravino, who first treated Buskirk in the summer of 1996.

(6) Dr. Dane Wukich, M.D.: Doctor who performed independent medicalexaminations on Buskirk for PMA.

2

Despite the less strenuous work, Buskirk still experienced painwhile working. As time progressed, Buskirk continued to seekmedical treatment from several different physicians andchiropractors, each of whom occasionally modified Buskirk’sworking and lifting restrictions.2

Buskirk continued working until June 27, 1996, at whichpoint Dr. Kuhn, and later Dr. Pollack, recommended that Buskirkcompletely cease working to avoid further aggravating his injury. Following these recommendations, Buskirk stopped working andremained off work through September 1996. On September 30, 1996,Dr. Pollack approved Buskirk to return to work part-time withcertain lifting restrictions. In accordance with Dr. Pollack’sapproval, Buskirk returned to work on October 1, 1996.

Upon returning to work in October, Buskirk was assigned toseveral “light-duty” jobs, including, as before, buff buildingand sample cutting. Over the next eight months, Buskirkcontinued on light duty, progressively increasing his work timeover this period. In November 1996, while Buskirk was stillworking part-time, Drs. Kuhn and Pollack concluded that Buskirkwould be permanently unable to return to his original box makingposition because of his injury. Buskirk continued on light dutythrough May 1997.

On May 29, 1997, Apollo discharged Buskirk from his job. Apollo stated in its termination letter that it could no longerprovide Buskirk with light duty work and that, in view ofBuskirk’s permanent medical restrictions, it could notaccommodate him “within the Box Maker position or any othervacant position.” Several days later, Buskirk, through his unionsteward, filed a grievance with Apollo objecting to histermination. On June 10, 1997, Deborah Schnabel, Apollo’s HumanResource Manager, responded to Buskirk’s grievance by letter, inwhich she stated that Buskirk no longer would be consideredterminated, but rather would be considered “on workers’compensation” as of May 31, 1997, pending further medicalexamination.

After leaving Apollo in May, Buskirk began collectingworkers’ compensation. Less than one month later, Drs. Kuhn and

3

Pollack updated his status and reduced his work restrictions. Asa result of his improving condition, Buskirk’s unionrepresentatives presented Apollo with a non-exhaustive list ofpositions whose responsibilities were within Buskirk’s currentcapabilities. Apollo did not place Buskirk in any of these —- orany other -- positions, contending that no position withinBuskirk’s capabilities was available at that time.

Buskirk remained out of work from Apollo until February1999. During this period, in addition to collecting workers’compensation, Buskirk supplemented his income by working as alaborer for his brother’s concrete business. He alsosuccessfully participated in work strengthening programs, whichultimately led his doctors to approve him for return to work atApollo in December 1998. In January 1999, Buskirk met withApollo representatives about his employment status. One monthlater, Buskirk bid on a pre-polisher position, which he receiveddue to his seniority. Buskirk began working in that capacity onFebruary 22, 1999.

DISCUSSION

I. Legal StandardSummary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file,together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving partyis entitled to judgment as a matter of law.” Fed. R. Civ. P.56(c). The moving party bears the initial burden of showing thebasis for its motion for summary judgment. Celotex Corp. v.Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548(1986). Once the moving party meets this burden pursuant to Fed.R. Civ. P. 56(c), the burden shifts to the non-moving party to gobeyond mere pleadings and to demonstrate, through affidavits,depositions or admissions, that a genuine issue exists for trial. Id. at 324. In so doing, the non-moving party must raise “morethan a mere scintilla of evidence in its favor” and may notmerely rely on unsupported assertions, conclusory allegations, ormere suspicions. Willmore v. American Atelier, Inc., 72 F. Supp.2d 526, 527 (E.D. Pa. 1999) (quoting Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505(1986)).

Put simply, the summary judgment standard requires the non-moving party to create a “sufficient disagreement to requiresubmission [of the evidence] to a jury.” Liberty Lobby, 477 U.S.at 251-52. When the non-moving party fails to create suchdisagreement, “[t]he moving party is ‘entitled to a judgment as amatter of law’ because the non-moving party has failed to make asufficient showing on an essential element of her case withrespect to which she has the burden of proof.” Celotex, 477 U.S.at 323.

3 The ADA and the PHRA are interpreted coextensively because they deal withsimilar subjects and serve similar goals. See Imler v. Holidaysburg Am.Legion Ambulance Serv., 731 A.2d 169, 173 (Pa. Super. Ct. 1999). Consequently, although we will only discuss the ADA claims, any analysisapplies with equal force to the PHRA claims. See Kelly v. Drexel Univ., 94F.3d 102, 105 (3d Cir. 1996).

4 “Because the ADA does not define many of the pertinent terms, we are guidedby the Regulations issued by the Equal Employment Opportunity Commission(“EEOC”) to implement Title I of the Act.” Deane, 142 F.3d at 143 n.4(citing 42 U.S.C. § 12102(2) and 29 C.F.R. § 1630.2)).

4

II. The ADA3

The ADA prohibits discrimination against qualified peoplewith disabilities. To create a prima facie case under the ADA, aplaintiff must “establish that he or she (1) has a disability (2)is a qualified individual and (3) has suffered an adverseemployment action because of that disability." Deane v. PoconoMedical Center, 142 F.3d 138, 142 (3d Cir. 1998) (citing Gaul v.Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998)).

A. Disability

Turning to the first element of the prima facie case, Apollo

contends that Buskirk is not disabled under the ADA. The ADA

defines a disability as: “(A) a physical or mental impairment

that substantially limits one or more of the major life

activities of [an] individual; (B) a record of such an

impairment; or (C) being regarded as having such an impairment.”

42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g)(1999). 4 Buskirk

maintains that he is disabled under all three prongs of this

definition. We examine his argument with respect to each prong

individually.

1. Substantially limited in a major life activity

First, Buskirk claims that his injury is a physical

impairment that substantially limits him in several major life

5 The ADA defines a physical or mental impairment, in part, as: “(1) Anyphysiological disorder, or condition, cosmetic disfigurement, or anatomicalloss affecting one or more of the following body systems: neurological,musculoskeletal, special sense organs, respiratory (including speechorgans), cardiovascular, reproductive, digestive, genitourinary, hemic andlymphatic, skin and endocrine . . . .” 29 C.F.R. § 1630.2(h).

5

activities. Neither party disputes that Buskirk’s back injury

constitutes a physical impairment.5 To be considered a

disability under the ADA, however, an impairment must also

“substantially limit” a “major life activity.” Penchishen v.

Stroh Brewery Co., 932 F. Supp. 671, 674 (E.D. Pa. 1996).

Although neither “major life activities,” nor “substantially

limited” is defined by statute, the relevant regulations provide

detailed guidance as to the meaning of these terms. According to

the regulations, major life activities include, but are not

limited to, “functions such as caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working.” 29 C.F.R. § 1630.2(i). In general, they

are “those basic activities that the average person in the

general populations can perform with little or no difficulty.”

29 C.F.R. App. § 1630.2(i) (1999). The regulations go on to

state that “substantially limited” means:

(i) Unable to perform a major life activitythat the average person in the generalpopulation can perform; or (ii) significantly restricted as to thecondition, manner or duration under which anindividual can perform a particular majorlife activity as compared to the condition,manner, or duration under which the averageperson in the general population can performthat same major life activity.

6 The EEOC guidelines also provide that the following factors should be usedin determining whether an individual is substantially limited in a majorlife activity: “(i) The nature and severity of the impairment; (ii) Theduration or expected duration of the impairment; and (iii) The permanent orlong term impact, or the expected permanent or long term impact of orresulting from the impairment.” 29 C.F.R. § 1630.2(j)(2).

7 After Buskirk’s first examination, Dr. Capobianco restricted Buskirk tolifting 21-50 pounds up to 33-percent of the time. Dr. Capobianco modifiedthat restriction only days later to 10 pounds up to 66-percent of the timeand 11-20 pounds up to 33-percent of the time. For the next several monthsleading up to Buskirk’s authorized excusal from work on June 27, 1996, Drs. Stravino, Behrman, and Kuhn set lifting restrictions on Buskirkvarying from 10 to 35 pounds. Following Buskirk’s excusal from workbetween June 27 and September 30, 1996, Buskirk was approved for work byDr. Pollack with a 10 pound lifting restriction. In June 1997, Drs.Pollack and Kuhn reduced Buskirk’s restrictions to lifting 20 poundsfrequently and 30 pounds occasionally.

In September 1997, Buskirk began work hardening and work strengtheningprograms to rehabilitate his back. One month later, a functional capacitytest indicated that Buskirk was capable of lifting 50 pounds occasionally. On March 2, 1998, an independent examination by Dr. Wukich concluded thatBuskirk was able to work full-time with a 50 pound lifting restriction. OnMarch 3, 1998, however, Dr. Pollack indicated that, although Buskirk wasimproving, he was not able to work full-time yet. Finally, on December 12,1998, Dr. Pollack approved Buskirk’s return to work with a permanent 40pound lifting restriction.

6

29 C.F.R. § 1630.2(j)(1).6 In the instant case, Buskirk argues

that he is substantially limited in several major life

activities. We turn to those now.

(a) Lifting

Buskirk claims that he is substantially limited in lifting.

The record indicates that, since his injury on February 8, 1996,

Buskirk has had a number of medical restrictions placed on the

amount of weight he can lift. These restrictions have varied

with the date of examination and the treating doctor. 7

It is undisputed that lifting is a major life activity. 29

C.F.R. App. § 1630.2(i). However, courts that have addressed

whether certain lifting restrictions are substantially limiting

7

have reached varying results. See, e.g., Gutridge v. Clure, 153

F.3d 898, 901 (8th Cir. 1998) (holding that 45 pound lifting

restriction not substantially limiting), cert. denied, 526 U.S.

1113, 143 L. Ed. 2d 790, 119 S. Ct. 1758 (1999); Williams v.

Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 (4th Cir.

1996) (holding that 25 pound lifting restriction not

substantially limiting); Lowe v. Angelo’s Italian Foods, Inc., 87

F.3d 1170, 1174 (10th Cir. 1996) (finding that issue of fact

exists whether 15 pound limitation is substantially limiting);

Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir. 1996) (holding

that 25 pound lifting restriction not substantially limiting);

Sicoli v. Nabisco Biscuit Company, Civ. A. No. 96-6053, 1998 U.S.

Dist. LEXIS 8429, *10-*14 (E.D. Pa. June 8, 1998) (finding that

issue of fact exists regarding whether lifting restriction of 32

pounds occasionally and 12 pounds frequently is substantially

limiting).

Fortuitously, the Third Circuit recently clarified this

precise issue. In Marinelli v. City of Erie, 216 F.3d 354 (3d

Cir. 2000), the defendant appealed the district court’s denial of

its motion for judgment as a matter of law. The key issue on

appeal was whether the plaintiff was “disabled” under the ADA.

In support of his claim, the plaintiff argued that he was

substantially limited in the major life activity of lifting

because he had a ten pound lifting restriction. After surveying

holdings in other circuits, the Third Circuit rejected the

plaintiff’s argument and held that his ten pound lifting

8 The activities include: sleeping, walking, bending, engaging in athleticactivities, sitting for long periods of time, standing for long periods oftime, pushing, driving, performing household chores, and engaging in sexualrelations. See Pltf Resp. at 11.

8

restriction “does not render him sufficiently different from the

general population such that he is substantially limited in his

ability to lift.” Id. at 364 (remanding with direction to enter

judgment as a matter of law for defendant).

In the instant case, it is undisputed that Buskirk has a

permanent lifting restriction of 40 pounds. Although Buskirk

did have somewhat more stringent lifting restrictions placed on

him at various times, none of these restrictions was of such

duration or long-term impact that it could be reasonably

considered “substantially limiting.” See 29 C.F.R. § 1630.2(j).

More significantly, at no relevant time did any of Buskirk’s many

doctors ever impose a lifting restriction of less than 10 pounds.

Under the prevailing view of this Circuit, such restrictions do

not, as a matter of law, constitute substantial limitations in

the major life activity of lifting. See Marinelli, 216 F.3d at

364.

(b) Walking, bending, athletics, et al.

Buskirk also sets forth a litany of other alleged major life

activities in which he claims to be substantially

limited.8 Initially, we reject Buskirk’s argument with respect

to engaging in various athletics, driving, and performing

household chores because these activities are not major life

9

activities. See id. at 362-63 (finding that scrubbing floors,

washing walls and other chores that are not “necessary for one to

live in a healthy or sanitary environment” do not qualify as

major life activities) (citations omitted); Colwell v. Suffolk

County Police Dep’t, 158 F.3d 635, 643 (2d Cir. 1998) (holding

that working on cars, golfing, skiing, and driving do not qualify

as major life activities), cert. denied, 526 U.S. 1018, 143 L.

Ed. 2d 350, 119 S. Ct. 1252 (1999); see also Weber v. Strippit,

Inc., 186 F.3d 907, 914 (8th Cir. 1999) (holding that shoveling

snow, gardening, and mowing the lawn do not qualify as major life

activities), cert. denied, __ U.S. __, 145 L. Ed. 2d 670, 120 S.

Ct. 794 (2000).

Buskirk’s claims with respect to sleeping and engaging in

sexual relations also must fail. Although we assume without

deciding that these are major life activities, Buskirk has failed

to produce any genuine issue of material fact that he is

substantially limited in these activities. No suggestion is made

in any medical report issued over a nearly three-year period

following his injury that Buskirk is limited -- much less

substantially limited -- in sleeping or engaging in sexual

relations. The only references to either issue appear in

Buskirk’s deposition and his wife’s affidavit wherein they state

that Buskirk’s sexual performance has changed. No further

elaboration or medical documentation is offered. Such bare

statements without any corresponding factual support do not

9 Furthermore, Buskirk makes no representation whatsoever that his allegedmalady has had such “permanent or long term impact” to constitute adisability under the ADA. See 29 C.F.R. § 1630.2(j)(2).

10 Moreover, even if this single restriction were more severe, it was at mosttemporary and, therefore, not of such duration or permanence to beconsidered a disability under the ADA. See 29 C.F.R. § 1630.2(j)

11 On February 26, 1996, Dr. Capobianco limited Buskirk to 4 hours ofcontinuous walking. On July 15, 1996, Dr. Dane Wukich limited Buskirk to 1to 3 hours of walking. Dr. Wukich’s second examination of Buskirk, on

10

create a genuine issue of fact. See Fed. R. Civ. P. 56(c),(e).9

Similarly, Buskirk’s argument with respect to standing and

walking must fail. Once again, although walking and standing are

major life activities, Buskirk has not raised a genuine issue of

material fact that he is substantially limited in these

activities. With respect to standing, Buskirk alludes to

experiencing some pain after prolonged standing. In addition,

his doctors placed some limitations on the amount of time that

Buskirk could stand, the most restrictive being Dr. Wukich’s July

15, 1996 limitation of one to three hours of continuous standing.

Even this most stringent restriction, however, does not rise to

the level of substantially limiting Buskirk’s ability to stand.

See Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 183 (3d Cir.

1999) (holding that cashier who could only stand for 50 minutes

without rest was no different than average person with respect to

standing and, therefore, was not disabled under ADA). 10

Likewise, with respect to walking, Buskirk has made no

argument concerning his walking limitations or pointed to any

evidence in the record. This Court’s own review of the record

reveals that Buskirk had at best moderate restrictions placed on

his walking11 and that no other evidence supports the view that

March 2, 1998, affirmatively removed all walking restrictions. No otherreport appears to have addressed walking restrictions.

12 On February 26, 1996, Dr. Stravino restricted Buskirk to bending“occasionally” and pushing/pulling up to 75 pounds. On July 15, 1996, Dr.Wukich restricted Buskirk’s bending completely and his pushing/pulling to1-3 hours. Dr. Wukich’s second examination of Buskirk, on March 2, 1998,reduced these restrictions to 3-5 hours for pushing/pulling and 1-3 hoursfor bending. No other report appears to have addressed these type ofrestrictions.

11

Buskirk was limited in his walking. Such moderate walking

restrictions do not present a genuine issue of material fact.

See Kelly, 94 F.3d at 103-04 (affirming summary judgment and

noting that “comparatively moderate restrictions on the ability

to walk are not disabilities”); Penchishen, 932 F. Supp. at 674

(holding that person who could not walk at full pace and had to

use both feet to walk up stairs was not disabled).

Finally, Buskirk’s claims with respect to bending, sitting,

and pushing must fail. Buskirk neither makes a specific

argument, nor cites to pertinent portions of the record to

support his general claim. The record reveals that, although

some moderate medical restrictions had been occasionally placed

on Buskirk following his injury,12 none constituted substantial

limitations. See, e.g., Horth v. General Dynamics Land Systems,

Inc., 960 F. Supp. 873, 878 (M.D. Pa. 1997) (holding that

plaintiff who could only sit for two hours was not substantially

limited); Testerman v. Chrysler Corp., No. CIV. A. 95-240, 1997

WL 820934, at *11 (D. Del. Dec. 30, 1997) (holding that plaintiff

who could only stoop, squat or twist intermittently was not

substantially limited). More importantly, no bending, sitting or

13 The examination closest in time to Buskirk’s May 29, 1997 discharge was Dr.Pollack’s June 27, 1997 examination, which reduced Buskirk’s liftingrestrictions but made no reference to any present or past restrictions onbending, sitting, or pushing.

12

pushing restrictions of any kind were imposed at the time of his

termination in May 1997.13 Buskirk’s claims are further belied

by his own admissions. In his deposition, Buskirk testified

that, while he was collecting workers’ compensation, he still

exercised occasionally and worked for his brother’s concrete

company performing “pretty heavy work” such as “helping with the

forms, carrying buckets of materials, [and] carrying ladders

around.” Buskirk Dep. at 124. While we do not discount the

relative difficulty Buskirk may have had in these activities, no

jury could reasonably find that Buskirk’s limitations constitute

the “extremely limiting disabilities . . . [that] qualify for

protected status under the ADA.” Marinelli, 216 F.3d at 362.

(c) Working

Finally, Buskirk claims that he is substantially limited in

working. When analyzing this type of claim, a court must

determine if the plaintiff is “significantly restricted in the

ability to perform either a class of jobs or a broad range of

jobs in various classes as compared to the average person having

comparable training, skills and abilities.” 29 C.F.R. §

1630.2(j)(3)(i). Furthermore, “[t]he inability to perform a

single, particular job does not constitute a substantial

14 The EEOC guidelines advise that the following factors may also be consideredin determining whether an individual is substantially limited in the majorlife activity of working:

(A) the geographic area to which the individual hasreasonable access; (B) the job from which the individual hasbeen disqualified because of an impairment, and the numberand types of jobs utilizing similar training, knowledge,skills or abilities, within that geographic area, from whichthe individual is also disqualified because of theimpairment (class of jobs); and/or (C) the job from whichthe individual has been disqualified because of animpairment, and the number and types of other jobs notutilizing similar training, knowledge, skills or abilities,within that geographical area, from which the individual isalso disqualified because of the impairment (broad range ofjobs in various classes).

29 C.F.R. § 1630.2(j)(3)(ii).

15 In his Response, despite raising “working” as a basis for his claim, Buskirkchose not to make any substantive argument. Instead, Buskirk maintainedthat such argument was unnecessary because he had made a sufficient showingwith regard to other major life activities. Buskirk correctly notes thatthis court need not examine whether an individual is substantially limitedin working if the court first finds that he is substantially limited insome other major life activity. See 29 C.F.R. App. § 1630.2(j). As weexplained supra, however, Buskirk is not substantially limited with regardto any other major life activity. Therefore, out of an abundance ofcaution, we will examine whether Buskirk could be reasonably considered tobe substantially limited in working.

13

limitation in the major life activity of working.” Id.14

Buskirk fails to put forward any argument regarding his

alleged substantial limitation in working. Notwithstanding

Buskirk’s failure, we review this issue. 15 After reviewing the

record, we hold that no genuine issue of material fact exists

with regard to whether Buskirk is substantially limited in the

major life activity of working. Although Buskirk is no longer

able to work as a box maker, nothing in the record suggests that

Buskirk is “significantly restricted in the ability to perform

either a class of jobs or a broad range of jobs.” See 29 C.F.R.

§ 1630.2(j)(2). To the contrary, Buskirk is currently working

16 The EEOC guidelines further state: “This part of the definition issatisfied if a record relied on by an employer indicates that theindividual has or has had a substantially limiting impairment. Theimpairment indicated in the record must be an impairment that wouldsubstantially limit one or more of the individual’s major life activities.”

14

without accommodation at Apollo in another job. In addition,

Buskirk worked as a laborer for his brother’s concrete business

when he was out on workers’ compensation from Apollo. Finally,

Buskirk’s 40 pound permanent lifting restriction does not

restrict him from any class of jobs, even those that may involve

some heavy lifting. See Howell v. Sam’s Club #8160/Wal-Mart, 959

F. Supp. 260, 266 n.10 (E.D. Pa. 1997) (“Even a medically

documented, moderate lifting restriction is not sufficient to

withstand summary judgment if the employee cannot demonstrate how

the lifting restriction substantially limits his or her ability

to engage in the major life activity of working.”), aff’d, 141

F.3d 1153 (3d Cir. 1998).

In sum, Buskirk has failed to meet his burden that he is

substantially limited in a major life activity. Accordingly, we

will grant Apollo’s Motion with respect to claims premised on

“actual disability.”

2. Record of Impairment

Next, we must consider whether Buskirk is disabled by virtue

of a record of an impairment. See 42 U.S.C. § 12102(2)(B). To

meet this definition, an individual must have a history of, or

been misclassified as having, an impairment that substantially

limited a major life activity. 29 C.F.R. § 1630.2(k). 16

29 C.F.R. App. § 1630.2(k).

15

Buskirk fails to produce any evidence that he has a record

of an impairment that substantially limits a major life activity.

It is undisputed that Buskirk suffered a back injury in February

1996, a result of which he was somewhat restricted in performing

a variety of tasks. It is further undisputed that Apollo

accommodated Buskirk by placing him in less strenuous positions

for several months. Finally, the record clearly shows that as of

November 1996, Buskirk’s doctors determined he would not be able

to return to his original box maker position. However, contrary

to Buskirk’s assertion, these facts do not establish that Buskirk

has a record of impairment. As we explained supra, in no

instance did Buskirk’s impairments substantially limit him in any

major life activity. If an impairment does not substantially

limit a major life activity, a history of those same impairments

cannot constitute a record of impairment. See Colwell, 158 F.3d

at 645; Palmisano v. Electrolux, LLC, __ F. Supp. 2d __, No. CIV.

A. 99-429, 2000 WL 1100785, at *4 (Aug. 7, 2000 E.D. Pa.).

Moreover, this conclusion is not changed by Buskirk’s medical

disqualification from his former position as a box maker, see 29

C.F.R. § 1630.2(j)(3)(i), or by Apollo’s earlier accommodation of

Buskirk with light duty, see Gutridge, 153 F.3d at 901-02

(holding that record of impairment not established during period

of recovery and treatment following a work injury because this

type of impairment is not a permanent disability); Panzullo v.

16

Modell’s Pa., Inc., 968 F. Supp. 1022, 1024 (E.D. Pa. 1997)

(finding that light-duty work limitation is not per se disability

under ADA).

Accordingly, we will grant Apollo’s Motion with respect to

claims premised on a “record of impairment.”

3. Regarded as Disabled

Finally, Buskirk claims that he is within the ADA’s

definition of disabled because Apollo regarded or perceived him

as disabled. See 42 U.S.C. § 12102(2)(C). A person is regarded

as having a disability if the person:

(1) has a physical or mental impairment thatdoes not substantially limit major lifeactivities but is treated by the coveredentity as constituting such limitation; (2) has a physical or mental impairment thatsubstantially limits major life activitiesonly as a result of the attitudes of otherstoward such impairment; or (3) has [no such impairment] but is treatedby a covered entity as having a substantiallylimiting impairment.

29 C.F.R. § 1630.2(l). Although Buskirk does not explicitly

state so, his argument is grounded on the first definition above,

that is, that he has an impairment that is not substantially

limiting, but that Apollo treated his impairment as if it were so

limiting. Specifically, Buskirk claims that Apollo’s decision to

discharge him was the result of its “mistaken belief that

Buskirk’s continued service in the light duty capacity would

aggravate his condition.” Pltf. Resp. at 14. Buskirk further

alleges that Apollo’s misperception resulted in it failing to

17

consider him for other available positions within his

capabilities.

Apollo counters Buskirk’s claim by contending that it was

well aware of Buskirk’s injury and that no misperception ever

existed. Apollo maintains that it discharged Buskirk in May

1997, not because of any misunderstanding of Buskirk’s condition,

but rather because it “could not provide [Buskirk] with] light

duty indefinitely.” Def. Reply at 7. In addition, Apollo argues

that no positions within Buskirk’s capabilities were available

prior to the pre-polisher position he received in February 1999.

Initially, we recognize that “the mere fact that an employer

is aware of an employee’s impairment is insufficient to

demonstrate that the employer regarded the employee as disabled.”

Kelly, 94 F.3d at 109. Furthermore, an employer’s decision to

accommodate an employee with light duty work does not establish a

“regarded as” claim under the ADA. See Pathmark, 177 F.3d at

190; Nave v. Wooldridge Construction, Inc., Civ. A. No. 96-2891,

1997 U.S. Dist. LEXIS 9203 at *29. In the instant case, it is

undisputed that Buskirk worked in a light duty position for

several months prior to his discharge. The relevant time period

for our focus, however, is from the time of Buskirk’s discharge

in May 1997 onward. Buskirk and Apollo offer conflicting

explanations for why Buskirk was discharged in May 1997 and why

he was not reassigned to other allegedly available positions

after his condition improved. In addition, some dispute exists

over when certain positions became available, whether Apollo gave

18

Buskirk notice of their availability, and, if so, whether Buskirk

made his interest known.

Buskirk points us to several portions of the record to

support his claim. First, Buskirk notes the deposition testimony

of William Federach, Apollo’s Vice President for Manufacturing,

which suggests that Buskirk was discharged because Apollo

believed he could not perform any job at Apollo. Next, Buskirk

cites his May 29, 1997 discharge letter, which states that

“[Apollo] cannot accommodate you within the Box Maker position or

any other vacant position and [has] no position that meets your

limited physical capabilities . . .,” as evidence that Apollo

regarded him as disabled under the ADA. In addition, Buskirk

offers various job postings and correspondence from Apollo that

allegedly show that there were available positions within his

capabilities and that Apollo failed to consider him for these

positions because it mistakenly believed Buskirk was disabled.

Viewing all these facts in the light most favorable to

Buskirk, we find that a jury could reasonably conclude that

Apollo erroneously regarded Buskirk as disabled under the ADA.

See Pathmark, 177 F.3d at 188 (finding drug store’s statements

that employee was unable to perform any job at store supported

conclusion that drug store perceived employee as disabled and

sufficed to make out a “regarded as” claim). Accordingly, we

will deny Apollo’s Motion with respect to claims premised on a

“regarded as” disability.

19

D. Qualified Individual

Having found that factual disputes exist over whether

Buskirk is disabled under the ADA, we must now examine the second

element of the prima facie case: whether Buskirk is a “qualified

individual.” The ADA defines a qualified individual as one “who,

with or without reasonable accommodation, can perform the

essential functions of the employment position that such

individual holds or desires.” 42 U.S.C. § 12111(8). The

applicable regulations divide this inquiry into two prongs: (1)

whether the individual has the requisite skill, experience,

education and other job requirements of the position and (2)

whether the individual, with or without reasonable accommodation

can perform the essential functions of the position. See 29

C.F.R. App. § 1630.2(m). Here, neither party disputes that

Buskirk had the qualifications for the various positions at

Apollo. As a result, we focus our attention on the second step

of the “qualified individual” analysis.

Determining whether an individual, with or without

reasonable accommodation, can perform the essential functions of

a positions is also a two-step process. First, a court examines

whether the individual can perform the essential functions of the

job without accommodation. See Deane, 142 F.3d at 146. In the

instant case, this determination is made easy as neither party

disputes that Buskirk is not able to perform the functions of his

former position as box maker.

The second determination to be made is whether the

20

individual can perform the essential functions of the job with a

reasonable accommodation. If so, the individual is qualified; if

not, the individual has failed to make out this element of the

prima facie case. See id. Buskirk argues that Apollo failed to

reasonably accommodate him by failing to consider him for several

jobs within his capabilities and failing to give him notice of

similar jobs as they became available.

The ADA provides that “reasonable accommodations” may

include “job restructuring, part-time or modified work schedules,

[and] reassignment to vacant positions . . . .” 42 U.S.C. §

12111(9). In addition, a reasonable accommodation may include:

“modifications or adjustments to a job application process that

enable a qualified applicant with a disability to be considered

for the position such applicant desires . . . .” 29 C.F.R. §

1630.2(o)(i). However, an individual’s right to a reasonable

accommodation is limited. For example, an employer need not

provide an accommodation if it would place an “undue hardship” on

the employer. See 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. §

1630.2(p) (listing factors to be considered in determining

whether accommodation is an “undue hardship”).

In the instant case, the parties dispute whether alternative

positions were available at Apollo and whether Buskirk was able

to perform the essential functions of those positions. Buskirk

contends that, at least as of his June 27, 1997 examination, he

was able to fulfill the duties of various then-available

positions at Apollo. Apollo counters that it properly relied on

17 The ADA’s regulations state:

To determine the appropriate reasonable accommodation it maybe necessary for the [employer] to initiate an informal,interactive process with the [employee] in need ofaccommodation. This process should identify the preciselimitations resulting from the disability and potentialreasonable accommodations that could overcome thoselimitations.

29 C.F.R. § 1630.2(o)(3). Indeed, the very nature of the process requiresboth parties “to assist in the search for appropriate reasonableaccommodation and to act in good faith.” Taylor v. Phoenixville AreaSchool District, 184 F.3d 296, 312 (3d Cir. 1999). Both Buskirk and Apollodispute whether certain communications between them are properlycharacterized as the interactive process and, if so, if such process wassufficient. Given the factual issues necessarily involved in making thisdetermination, and the clear disagreement among the parties, we leave thisissue for the jury.

21

doctors’ reports that, in Apollo’s view, established that Buskirk

was not able to fulfill those positions’ duties. Apollo further

maintains that, regardless of Buskirk’s medical status, no

positions within his capabilities and for which he was eligible

were available prior to the position he took in February 1999.

The Court observes that Buskirk’s many medical reports, and

their accompanying restrictions, were not always consistent and

may have understandably led to confusion. We further observe

that both parties may have contributed to the confusion by less

than regular and open communication.17 However, apportioning the

proper blame, if any, for these matters is a job best left for

the fact-finder. We find that Buskirk has raised genuine issues

of fact as to whether he could have worked in several positions

at Apollo with reasonable accommodation. As such, a jury could

reasonably conclude that he is a qualified individual under the

ADA. Accordingly, we will deny Apollo’s Motion on this issue.

18 We recognize that, if Buskirk ultimately prevails, this case may present thetroublesome question of whether a “regarded as” plaintiff is entitled toaccommodation even though he is not actually disabled. While this courtrecognizes the difficulty inherent to that question, see, e.g., Pathmark,177 F.3d at 195-96, we need not resolve it at the summary judgment stage.

22

E. Adverse Employment Action

Finally, we find that Buskirk has established the third

prong of his prima facie case. It is uncontested that Buskirk

was discharged from Apollo in May 1997 and remained off work from

Apollo until February 1999. These issues suffice to allow

Buskirk to survive summary judgment with respect to whether he

suffered an adverse employment action. 18

III. Tortious Interference

Defendant also seeks summary judgment on Buskirk’s tortious

interference with contractual relations claim. To prevail on a

claim from intentional interference with contractual relations, a

plaintiff must prove:

(1) the existence of a contractual, orprospective contractual relations betweenitself and a third party;(2) purposeful action on the part of thedefendant, specifically intended to harm theexisting relation, or to prevent theprospective relation from occurring;(3) the absence of a privilege orjustification on the part of the defendant;(4) the occasioning of actual legal damage asa result of the defendants’ conduct; and(5) for prospective contracts, a reasonablelikelihood that the relationship would haveoccurred but for the interference of thedefendant.

Brokerage Concepts, Inc. v. U.S. Healthcare, Inc. , 140 F.3d 494,

23

530 (3d Cir. 1998) (citing Pelagatti v. Cohen, 370 Pa. Super.

422, 536 A.2d 1337, 1343 (1988)).

In its motion for summary judgment, Apollo only takes issue

with the third element, arguing that it had a privilege to object

to any settlement agreement between the insurance carrier and

Buskirk. In making this argument, Apollo relies on the

Restatement (Second) Torts § 769, which states that:

one who, having a financial interest in thebusiness of a third person[,] intentionallycauses that person not to enter into aprospective contractual relation withanother, does not interfere improperly withthe other person’s relation if he (a) doesnot employ wrongful means and (b) acts toprotect his interest from being prejudiced bythe relation.

Id. Apollo maintains that its particular privilege exists by

virtue of its financial interest in the business of its workers’

compensation carrier, PMA Insurance Group. Specifically, Apollo

claims that a settlement between Buskirk and PMA would result in

Apollo either being held responsible to pay the settlement or

being subject to higher insurance premiums in the future.

We recognize that Pennsylvania courts have adopted the

reasoning of § 769 of the Restatement. See Schulman v. J.P.

Morgan, 35 F.3d 799 (3d Cir. 1994) (noting approval of § 769 by

various Pennsylvania state courts). However, notwithstanding the

applicability of the privilege under Pennsylvania law, Apollo has

failed to cite to any evidence in the record that supports the

finding of an underlying financial interest upon which its

24

alleged privilege is based. Instead, Apollo simply states that

it might have incurred higher insurance premiums in the future or

might have been held responsible for the actual settlement. Such

statements, unadorned by any factual support in the record, do

not suffice to meet Apollo’s burden as the moving party. See

Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 323. Accordingly, we

will deny Apollo’s Motion with respect to this claim.

CONCLUSION

For the foregoing reasons, Apollo’s Motion for Summary

Judgment will be granted in part and denied in part. Defendant’s

Motion will be granted on Counts I-V insofar as they are premised

on actual disability or record of impairment. Defendant’s Motion

will be denied on Counts I-V insofar as they are premised on

regarded as disability. Defendant’s Motion will be denied on

Count VI. An appropriate order follows.

25

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLARD T. BUSKIRK, ::

Plaintiff, : CIVIL ACTION :

v. : No. 99-216:

APOLLO METALS, ::

Defendant. :

ORDER

AND NOW, this day of September, 2000, upon

consideration of Defendant’s Motion for Summary Judgment and

Plaintiff’s responses thereto, it is hereby ORDERED that the

Motion is GRANTED in part and DENIED in part.

Defendant’s Motion is GRANTED on Counts I-V insofar as they

are premised on 42 U.S.C. § 12102(2)(A) (“actual disability”) or

42 U.S.C. § 12102(2)(B) (“record of impairment”). Defendant’s

Motion is DENIED on Counts I-V insofar as they are premised on 42

U.S.C. § 12102(2)(C) (“regarded as”). Defendant’s Motion is

DENIED on Count VI.

BY THE COURT:

________________________J. CURTIS JOYNER,

J.